Wednesday, September 5, 2012

(En)countering Torture in China [Part 2 of 2]

Work is underway to root out torture in China, but in order to evaluate current initiatives, it’s important to consider how torture operates. Back in 2006, Beijing Kingdom Law Firm (北京市京鼎律师事务所) conducted a study of torture and other illegal conduct in eight cases—those of Du Peiwu (杜培武), Jin Weiguang (靳伟光), Li Jiuming (李久明), She Xianglin (佘祥林), Sun Wangang (孙万刚), Wang Shuhong (王树红), Xu Jingxiang (胥敬祥), and Zhu Shengwen (朱胜文)—in an effort to shape revisions to the Criminal Procedure Law. The study found 10 legislative flaws and systemic loopholes that demonstrated why de jure prohibitions on torture have not been realized in practice.

The following list provides the 10 flaws along with illustrative case excerpts translated from Kingdom Law Firm’s report.

  1. Serious flaws exist in the detention system: All alleged torture occurred outside detention centers.

    Case 1 – Zhu Shengwen [said he] suffered two bouts of torture … (1) In the building where the special group investigating his case was stationed, Zhu endured beatings, electric batons, electrocution, and other forms of torture through the course of a nine-month interrogation. In accordance with instructions communicated on three occasions by the special group, Zhu “confessed” to three crimes. (2) The second session occurred after Zhu was transferred to the dungeon of Bei’an prison [in Heilongjiang]. In an underground prison cell measuring less than two square meters, Zhu was detained for 40 days. He was guarded and tortured by two prisoners who had been sentenced to life imprisonment. Finally, under the “inspiration” of these two prisoners, and in order to survive and await a chance to appeal, Zhu Shengwen was again forced to admit [the crime].

    Case 2 – According to She Xianglin’s statement, after he was summoned for detention on suspicion of killing his wife, the special group investigating his case took him directly to a hot-springs resort where he suffered 10 days and 11 nights of torture. Two years later, when the case was returned for reinvestigation, the special group escorted She from the detention center to the hot-springs resort for another five days and six nights of interrogation. She Xianglin told [Kingdom Law Firm] that while he was detained at the resort for interrogation, he often heard screams ... According to his analysis and after-the-fact communication with other detainees, [it is believed that] special groups in charge of major cases established the hot-springs resort specifically to conduct interrogation.
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  3. Torture is a significant means for police to solve cases and earn merit: In almost all cases, the special group set up to solve the case was awarded for meritorious service and, because of this, some leaders were promoted.

    Case 1 – Du Peiwu and his defense lawyer told [Kingdom Law Firm] that [a case in which] two policemen were murdered and their bodies were dumped … created a lot of pressure for the police to solve the case. This pressure also became their incentive [since] it was customary for people to be awarded and promoted after a major case was solved. Driven by such enormous pressure and incentive, police officers relied on torture even more than usual to secure a confession.
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  5. The methods of torture are diverse and cruel to the point of depriving basic human dignity: Undergoing such cruel punishment, all of the accused preferred death over life, pleading guilty to capital crimes.

    Case 1 – After smashing Xu Jingxiang’s right ankle with a wooden club, police stomped and trampled on it with their leather shoes. They also scalded him with oil dripping from burning plastic bags. Having suffered three days and three nights of continuous torture, Xu made a confession of guilt based on hearsay and police instruction.
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  7. Evidence is fabricated to conceal torture: Fabrications—including altered interrogation records, the directed identification [of crime scenes], and illegal forensic identification—were accepted by procuratorates and courts, while statements and evidence provided by the defense were ignored.

    Case 1 – During the investigation of Du Peiwu, the Kunming Intermediate People’s Court joined police in administering a polygraph test. According to Du, after he answered several questions truthfully, one woman from the court became dissatisfied with his answers and slapped him. The court’s “assistance” continued until the polygraph determined that all of Du’s answers were “lies.”

    Case 2 – When Wang Shuhong was detained, his family and people from nearby villages proactively went to police to provide information regarding the case, but were threatened by a police officer who said: Isn’t it enough that Wang Shuhong’s [in detention]? You all want to come here as well? Even when the case was returned for supplementary investigation, investigators ignored the problems reported by the villagers.

    Case 3 – If the defendants or their defense lawyers insisted in their claims that torture was used, the judges would adjourn the trial or stop such claims. If the defense was particularly adamant, it was common for prosecutors to deal with cross-examination and the trial participants by presenting statements provided by public security stating that no illegal acts were committed during the investigation stage. People’s courts would adopt the prosecutor’s “explanation” without conducting any investigation.
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  9. Evidence of torture is difficult to preserve and allegations of torture are not acknowledged by the courts.

    Case 1 – In order to prove that Du Peiwu was never tortured, the prosecutor played a video during the hearing that showed the entirety of one of Du’s interrogations. In response, the defense lawyer argued that this was an attempt to prove the civility of all interrogations with one relatively civilized interrogation. The torture that accounts for one third of all interrogations was intentionally evaded. Unfortunately, the collegial panel did not take any measures in regard to the defense lawyer’s aforementioned argument and instead identified it as “the defense lawyer’s pure speculation” and did not accept it.

    Case 2 – Du Peiwu told [Kingdom Law Firm] that, during the second hearing, he brought a bloody shirt, which he had secretly kept, into the courtroom by wrapping it around his waist. He then presented it to the judge … who merely said “just put down the shirt” and asked the bailiff to take it away without initiating any examination of the evidence. After the hearing, Du repeatedly asked the court to return the bloody shirt that he had painstakingly preserved, but the court’s final response was that it had been “incinerated.”

    Case 3 – During [Li Jiuming’s] trial of first instance, the questioning stage was simply omitted, no evidence was presented, and lawyers were not permitted to conduct cross-examination. In fact, courts not examining key evidence, and in particular the phenomenon of [courts] not examining evidence of torture presented by defendants and their defense lawyers, accounted for nearly 100 percent of the cases in this study.
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  11. Investigative organs selectively transfer evidence: Confessions and evidence of guilt were submitted while evidence of innocence was concealed.

    Case 1 – Sun Wangang’s defense lawyer found just two records of Sun’s confession of guilt in the case file. It was exactly these two records, however, that had been transferred to the procuratorate. When the case was reviewed by the provincial procuratorate, in consideration of the possibility of torture, the [officials] handling [the case] submitted these two records for judicial verification and found that Sun’s signatures [had been falsified].
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  13. Procuratorial oversight is lacking: Procuratorates ignored the illegal conduct of police and the appeals of the accused and even cooperated with investigative organs to intentionally conceal evidence.

    Case 1 – Wang Shuhong quickly submitted documents to the prefecture-level procuratorate accusing the police of torture. In fact, [at that time] the real murderer had already been identified. The prefectural procuratorate went to the county public security bureau to obtain videos of [Wang’s] interrogation and came to the conclusion that [the county public security bureau] had engaged in “extortion and enticements.” Yet the procuratorate and the public security bureau reached an agreement on internal investigation. Leading departments at the prefecture level, the public security bureau, and procuratorate set up an investigation group after Wang raised his accusations, but the police who stood accused firmly denied that they had ever used torture. The investigation group finally determined that there was insufficient evidence of police torture. Later, after some new evidence was discovered, the provincial procuratorate directed the county procuratorate to investigate the case further. Ultimately, the county procuratorate requested that the case be withdrawn because “the investigation caused emotional disturbances among the entire police force.”

    Case 2 – Having confessed under torture, Sun Wangang always hoped he could bring his accusations of police torture to the procuratorate. Unfortunately, he never saw a procuratorial official before his first hearing.
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  15. Role of defense lawyers is extremely limited during the investigation phase: None of the accused was informed of their right to counsel. Only Du Peiwu, who was a police officer by profession, proactively asked for legal counsel, but he was refused.

    Case 1 – Sun Wangang told [Kingdom Law Firm] that he was only informed of his right to counsel shortly before the trial of first instance. Sun’s father then hired two lawyers introduced to him by a judge at the Zhaotong District People’s Court. Yet three days before the hearing, one of the lawyers resigned because his wife was having a baby. In desperation, Sun’s father then had to find another lawyer quickly. These two lawyers hastily met Sun Wangang, hurriedly examined the case file, and went to trial. Sun had told the lawyers the details of the torture [he endured], but, in such a short time, the lawyers had no grasp of the situation nor any evidence, so they did not raise [the allegations] in court. This defense was basically a formality.
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  17. Courts hold illegal trials leading to conviction: There is no judicial independence and court procedures—such as those regarding jurisdiction, the admission of evidence, and sentencing—are repeatedly violated.

    Case 1 – Du Peiwu said that before his trial began, the presiding judge came to the detention center where he conducted a hearing. Du told the judge his grievances, but the judge wasn’t interested in hearing Du’s pleas. Instead, the judge wanted to make a deal with Du, offering a “suspended” sentence in exchange for the murder weapon, which the police had been unable to find. … After being sentenced to death in the trial of first instance, Du Peiwu still had faith in the court and continued to tell the judge that he had been tortured, that he was innocent, and that he hoped the court could investigate and conduct a fair trial. But the judge kept bargaining with him over surrendering the murder weapon and said “brave words” like, “If I kill you with an unjust verdict, worst case scenario, I go to jail.”

    Case 2 – [She Xianglin said that] before his hearing, a judge offered this bargain: “Say what you are told to say, then I can give you life imprisonment.”

    Case 3 – The jurisdiction of these cases should belong to intermediate people’s courts, but ultimately, through the coordination of relevant departments … it was “devolved” to basic level procuratorates and courts in three of the eight cases in this study. … [This] was because the substantial facts were unclear, the evidence was insufficient, and critical flaws in the evidence could not be remedied after repeatedly remanding the cases to police for investigation. In the end, it was common for defendants whose indictments stated that they committed serious crimes to be given “lenient” fixed-term prison sentences.

    Case 4 – One judge told [Du Peiwu’s lawyer Liu Huyue] that [judges] assume enormous risks regardless of whether [they] “kill” or “release” [defendants], so they normally start out by leaving them with their lives. In fact, this situation occurred in most of the cases researched in this study … with suspended death sentences and “degradations” to fixed-term imprisonment. Through this study, we found that no matter how many times [a case] was returned for investigation or tried, the courts had actually already determined that “the facts were unclear and the evidence was insufficient,” yet because of certain pressures and risks, in these cases that obviously lacked sufficient evidence and facts to constitute a crime, the courts normally “returned the case for retrial” or, in accordance with the principle of “lenient sentences for suspected crimes” (疑罪从轻) [This “principle” is de facto not de jure; the Criminal Procedure Law stipulates that guilt cannot be determined without sufficient evidence, and thus is more prescriptive of a principle of “no convictions for suspected crimes” (疑罪从无)—Trans. Note], temporarily did not issue death sentences and gave defendants’ the chance to live to see new evidence and facts appear. Fortunately, [She Xianglin, Zhu Shengwen, Xu Jingxiang, Du Peiwu, and others] finally saw the day where the real murderers [were apprehended] or the victims “rose from the dead” thereby gaining their freedom from capital crimes. In sum, the [defendants] were deprived of their legally protected rights and interests by the law and were restored of [these rights] by murders and victims.
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  19. Public security, procuratorates, and courts coordinate the handling of cases: First, the outcome of the cases is decided, and then the trial procedure is carried out as a formality.

    Case 1 – According to Xu Jingxiang’s accounts, after the trial of first instance, the presiding judge told him: “I understand that this is unfair to you. But the [outcome] of this case has already been determined by relevant superior departments, and this is how you are to be sentenced. It’s useless for you to appeal. After so many years, you should know that the weak cannot overcome the strong.